Rhode Island law makers are considering H5045, which will allow some people convicted of multiple misdemeanors to have their record expunged.
The lead sponsor — freshman Rep. Michael A. Rice, D-South Kingstown — said he was aware of “a couple of cases” in his district of people who had racked up misdemeanor records in their teens and early 20s, “paid their debt to society” and straightened out their lives, but could not shake off the stigma of their youthful misdeeds.
Existing law allows a court to expunge a non-violent misdemeanor 5 years after completing the sentence. The waiting period for non-violent felonies is currently 10 years.
H5045, co-sponsored by Rice, Lally and Rep. Kenneth Carter, D-North Kingstown, would allow courts to expunge multiple misdemeanors, regardless of the age of the offender or the nature of the offense, which could include drunken driving and domestic abuse.
More soon...
Wednesday, April 8, 2009
Monday, April 6, 2009
Firearm Rights Restoration in Montana
Question Presented
Can someone with a misdemeanor conviction in California that contains a lifetime prohibition on firearm ownership purchase a firearm in Montana?
(A) What are the applicable misdemeanor convictions in California that carry a lifetime prohibition on firearm ownership?
(B) Does Montana law allow for a party to purchase a firearm if the party has a lifelong prohibition on firearm ownership?
Short Answer
Yes, in order for a party who carries a lifetime prohibition for possessing a firearm in California to obtain the right to purchase a firearm in Montana, they must either:
• Not have been convicted of a crime in California, which is equivalent to a Montana offense that would subject the person to an additional sentence under section 46-18-221 (this includes any offence in which the use of a weapon is an element of the offense, and who, while engaged in the commission of the offense, knowingly displayed, brandished, or otherwise used a firearm, destructive device, or other dangerous weapon) or;
• They must apply to have their right to purchase firearms reinstated. If the party must apply for reinstatement the process would require the petitioner to file their application with the district court for the county in which the person resides for a permit to purchase and possess one or more firearms, explaining good cause for the possession of each firearm sought to be purchased and possessed.
Discussion
(A) Applicable Misdemeanor Convictions in California that Carry a Lifetime Prohibition on Firearm Ownership
Any person who has been convicted of a felony, a specified misdemeanor, or a specified firearms offense; who is addicted to narcotics; who is the subject of a protective order; or who has been found by a court or mental facility to have certain mental disabilities is prohibited by California law from possessing firearms. In some instances, convictions may carry a lifetime prohibition from possessing firearms.
The following California misdemeanor convictions result in a lifetime prohibition:
• Assault with a firearm (§§ 12021(a)(1), 12001.6(a).)
• Shooting at an inhabited or occupied dwelling house, building, vehicle, aircraft, housecar or camper (§§ 246, 12021(a)(1), 12001.6(b).)
• Brandishing a firearm in presence of a peace officer (§§ 417(c), 12001.6(d), 12021(a)(1).)
• Two or more convictions of 417(a)(2) (§ 12021(a)(2).)
• A “misdemeanor crime of domestic violence” (§§ 18 U.S.C. 921(a)(33)(A), 18 U.S.C. 922(g)(9).)
Parties convicted of the above California statutes will not be automatically eligible to purchase firearms in Montana. These parties must petition the appropriate Montana district court for the reinstatement of their right to purchase firearms and the requested reinstatement will be held at the discretion of the district court judge.
(B) Montana Law that Provides for the Possession of a Firearm for Convicted Individuals
Montana Code Annotated 45-8-313 Unlawful Possession of Firearm by Convicted Person, provides that, subject to certain limited exceptions, no person shall possess a firearm if he or she has been convicted of a felony for which he or she received an additional sentence under section 46-18-221 (which imposes an additional sentence for offenses committed with a dangerous weapon); or an offense of another state or federal law which is equivalent to a Montana offense which would subject the person to an additional sentence under section 46-18-221. This includes any offence in which the use of a weapon is an element of the offense, and who, while engaged in the commission of the offense, knowingly displayed, brandished, or otherwise used a firearm, destructive device, or other dangerous weapon.
Further, Montana Code Annotated, 45-8-314 Lifetime Firearms Supervision of Certain Convicted Persons, provides that if any person is convicted of an offense referred to in section 45-8-313 shall, as part of the sentence imposed, be sentenced to life supervision by the state for the purpose of restricting the person’s right to purchase and possess firearms. However, there are still avenues available for a person with a lifetime prohibition under Montana law to obtain possession of a firearm.
Montana Code Annotated 45-8-314(2) states that a person subject to a lifetime prohibition may apply to the district court for the county in which the person resides for a permit to purchase and possess one or more firearms. The applicant must show good cause for the possession of each firearm sought to be purchased and possessed. The grant or denial of the application does not prevent the person from submitting another application, except that if the application is denied, another may not be submitted for a period of 12 months. The application must contain the following information: (i) the person's full name and any past or present aliases; (ii) the person's date and place of birth; (iii) the person's address; (iv) the person's occupation; (v) the make and model of each firearm sought to be purchased and possessed; (vi) the date and place of each conviction of an offense referred to in 45-8-313, the name of the offense, the state and county in which the offense occurred, the sentence imposed, the place or places of incarceration, and the date of discharge from supervision for the last offense; (vii) the name and business address of the person's last probation or parole officer; and (viii) any other information considered necessary by the court.
Considering the relevant Montana statutes, a person who is convicted of a misdemeanor in California that carries a lifetime prohibition maybe able to purchase firearms in Montana. This is based on the logic that if a person with a Montana conviction can apply to have their lifelong prohibition for the possession and purchase of firearms reinstated then the same opportunity will be available to a person with a California conviction. Thus, as long as the misdemeanor conviction in California is parallel to a conviction in Montana, the party with the California conviction should be able to petition for their reinstatement of firearms purchasing rights.
Conclusion
While a person convicted of a California misdemeanor that carries a lifelong prohibition on the purchase for firearms may not automatically qualify to purchase firearms in Montana, their eligibility to petition the right to purchase and possess a firearm seems unrestricted. In either situation, our client has options to restore his right to purchase and possess firearms in the state of Montana.
Can someone with a misdemeanor conviction in California that contains a lifetime prohibition on firearm ownership purchase a firearm in Montana?
(A) What are the applicable misdemeanor convictions in California that carry a lifetime prohibition on firearm ownership?
(B) Does Montana law allow for a party to purchase a firearm if the party has a lifelong prohibition on firearm ownership?
Short Answer
Yes, in order for a party who carries a lifetime prohibition for possessing a firearm in California to obtain the right to purchase a firearm in Montana, they must either:
• Not have been convicted of a crime in California, which is equivalent to a Montana offense that would subject the person to an additional sentence under section 46-18-221 (this includes any offence in which the use of a weapon is an element of the offense, and who, while engaged in the commission of the offense, knowingly displayed, brandished, or otherwise used a firearm, destructive device, or other dangerous weapon) or;
• They must apply to have their right to purchase firearms reinstated. If the party must apply for reinstatement the process would require the petitioner to file their application with the district court for the county in which the person resides for a permit to purchase and possess one or more firearms, explaining good cause for the possession of each firearm sought to be purchased and possessed.
Discussion
(A) Applicable Misdemeanor Convictions in California that Carry a Lifetime Prohibition on Firearm Ownership
Any person who has been convicted of a felony, a specified misdemeanor, or a specified firearms offense; who is addicted to narcotics; who is the subject of a protective order; or who has been found by a court or mental facility to have certain mental disabilities is prohibited by California law from possessing firearms. In some instances, convictions may carry a lifetime prohibition from possessing firearms.
The following California misdemeanor convictions result in a lifetime prohibition:
• Assault with a firearm (§§ 12021(a)(1), 12001.6(a).)
• Shooting at an inhabited or occupied dwelling house, building, vehicle, aircraft, housecar or camper (§§ 246, 12021(a)(1), 12001.6(b).)
• Brandishing a firearm in presence of a peace officer (§§ 417(c), 12001.6(d), 12021(a)(1).)
• Two or more convictions of 417(a)(2) (§ 12021(a)(2).)
• A “misdemeanor crime of domestic violence” (§§ 18 U.S.C. 921(a)(33)(A), 18 U.S.C. 922(g)(9).)
Parties convicted of the above California statutes will not be automatically eligible to purchase firearms in Montana. These parties must petition the appropriate Montana district court for the reinstatement of their right to purchase firearms and the requested reinstatement will be held at the discretion of the district court judge.
(B) Montana Law that Provides for the Possession of a Firearm for Convicted Individuals
Montana Code Annotated 45-8-313 Unlawful Possession of Firearm by Convicted Person, provides that, subject to certain limited exceptions, no person shall possess a firearm if he or she has been convicted of a felony for which he or she received an additional sentence under section 46-18-221 (which imposes an additional sentence for offenses committed with a dangerous weapon); or an offense of another state or federal law which is equivalent to a Montana offense which would subject the person to an additional sentence under section 46-18-221. This includes any offence in which the use of a weapon is an element of the offense, and who, while engaged in the commission of the offense, knowingly displayed, brandished, or otherwise used a firearm, destructive device, or other dangerous weapon.
Further, Montana Code Annotated, 45-8-314 Lifetime Firearms Supervision of Certain Convicted Persons, provides that if any person is convicted of an offense referred to in section 45-8-313 shall, as part of the sentence imposed, be sentenced to life supervision by the state for the purpose of restricting the person’s right to purchase and possess firearms. However, there are still avenues available for a person with a lifetime prohibition under Montana law to obtain possession of a firearm.
Montana Code Annotated 45-8-314(2) states that a person subject to a lifetime prohibition may apply to the district court for the county in which the person resides for a permit to purchase and possess one or more firearms. The applicant must show good cause for the possession of each firearm sought to be purchased and possessed. The grant or denial of the application does not prevent the person from submitting another application, except that if the application is denied, another may not be submitted for a period of 12 months. The application must contain the following information: (i) the person's full name and any past or present aliases; (ii) the person's date and place of birth; (iii) the person's address; (iv) the person's occupation; (v) the make and model of each firearm sought to be purchased and possessed; (vi) the date and place of each conviction of an offense referred to in 45-8-313, the name of the offense, the state and county in which the offense occurred, the sentence imposed, the place or places of incarceration, and the date of discharge from supervision for the last offense; (vii) the name and business address of the person's last probation or parole officer; and (viii) any other information considered necessary by the court.
Considering the relevant Montana statutes, a person who is convicted of a misdemeanor in California that carries a lifetime prohibition maybe able to purchase firearms in Montana. This is based on the logic that if a person with a Montana conviction can apply to have their lifelong prohibition for the possession and purchase of firearms reinstated then the same opportunity will be available to a person with a California conviction. Thus, as long as the misdemeanor conviction in California is parallel to a conviction in Montana, the party with the California conviction should be able to petition for their reinstatement of firearms purchasing rights.
Conclusion
While a person convicted of a California misdemeanor that carries a lifelong prohibition on the purchase for firearms may not automatically qualify to purchase firearms in Montana, their eligibility to petition the right to purchase and possess a firearm seems unrestricted. In either situation, our client has options to restore his right to purchase and possess firearms in the state of Montana.
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